Bail Reform and the Challenges Ahead

Immediately after Governor Jerry Brown signed SB10, the California Money Bail Reform Act, into law late this summer, opponents were already outlining plans to get a referendum taking the law to the voters in 2020. A successful referendum would place a hold on the law going into effect in October 2019. Last minute changes to the bill caused ardent supporters such as the NAACP and ACLU to withdraw their support of the act. Of greatest concern to these and other human rights organizations was the fact that SB10 could have the opposite effect intended, putting more people behind bars pretrial and without eligibility for release. Opponents argue that last minute amendments may exacerbate the racial biases already rampant in the criminal justice system.

SB10 lacks clarity in many ways. It advocates the use of a risk-based assessment tool to determine whether a defendant should be released or kept incarcerated pretrial. These risk-based assessment tools have been criticized for relying on biased data that is inherently discriminatory against minorities and the poor. Opponents also criticize the almost unlimited discretion of judges to determine whether a defendant should be released. Given the striking headlights about defendants released on their own recognizance that commit egregious crimes, many fear that judges will be hesitant to release defendants for fear of similar situations.

In addition to the potential risks for more people being detained pretrial and the use of risk-assessment algorithms that discriminate against minorities and the poor, many question the unknown cost to taxpayers. Implementing pretrial services programs throughout the state will be costly. Undoubtedly, there will be additional burdens placed on the courts that require more training, more staff and more hours. Bail bondsmen provide a unique service to the courts and to law enforcement. If a person who has bailed out fails to appear at court, the bail bondsmen will help to bring the fugitive to justice. This is at no cost to taxpayers. A pretrial services system places the entire burden on the courts and law enforcement to monitor and bring fugitives to justice.

Opponents of SB10 have until November 26 to gather 365,880 signatures for the referendum. If successful, there will be a delay of the implementation of SB10 until it is voted on in 2020 when it will appear on the general election ballot.